DOL Announces Proposed Rule Change to Companionship Exemption

December 23, 2011

The U. S. Department of Labor's Wage and Hour Division intends to publish a Notice of Proposed Rulemaking that would provide minimum wage and overtime protections for nearly two million workers who provide in-home care for the elderly and infirm.

Section 13(a)(15) of the FLSA exempts from its minimum wage and overtime provisions domestic service employees employed "to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary)." Section 13(b)(21) of the FLSA exempts from the overtime provision any employee employed "in domestic service in a household and who resides in such household."

The Department is proposing to revise the regulations to accomplish two purposes. First, the Department seeks to more clearly define the tasks that may be performed by an exempt companion. Second, the proposed regulations would limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as health care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.

The proposal would clarify that "companionship services" do not include the performance of medically-related tasks for which training is typically a prerequisite. The current regulations specifically identify trained personnel such as nurses as outside the scope of the exemption, and this clarification more clearly identifies what constitutes medically-related services.

Under the proposed rule, any work benefiting other members of the household, such as preparing meals or performing housekeeping or laundry for other members of the household, does not fall within the allowable incidental duties of an exempt companion.

Upon publication in the Federal Register, interested parties may submit written comments on the proposed rule during the 60-day period following the publication. Only comments received during the comment period identified in the Federal Register will be considered part of the rulemaking record. The Notice of Proposed Rulemaking has not yet been published in the federal register.

SESCO Management Consultants will continue to monitor developments related to this proposed change. In the mean time SESCO suggests contacting elected officials and associations to communicate concerns over these proposed rules which will have a significant impact on the ability of providers to continue these services due to increased cost and red tape.

SESCO specializes in Wage Hour compliance and is available by phone or onsite to conduct compliance assessments. Contact SESCO 423 764 4127. www.sescomgt.com